-SKO (HC) Perez v. Bitter, No. 1:2011cv01766 - Document 10 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petitioner's State Law Claims without Leave to Amend signed by Magistrate Judge Sheila K. Oberto on 11/14/2011. Referred to Judge O'Neill; Objections to F&R due by 12/19/2011. (Flores, E)
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-SKO (HC) Perez v. Bitter Doc. 10 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 CESAR MELGOZA PEREZ, 13 Petitioner, 14 15 16 v. M. D. BITTER, Warden, 17 Respondent. 18 ) ) ) ) ) ) ) ) ) ) ) ) 1:11-cv—01766-LJO-SKO-HC FINDINGS AND RECOMMENDATIONS TO DISMISS PETITIONER’S STATE LAW CLAIMS WITHOUT LEAVE TO AMEND (DOC. 1) OBJECTIONS DEADLINE: THIRTY (30) DAYS 19 Petitioner is a state prisoner proceeding pro se and in 20 forma pauperis with a petition pursuant to 28 U.S.C. § 2254. The 21 matter has been referred to the Magistrate Judge pursuant to 28 22 U.S.C. § 636(b)(1) and Local Rules 302 through 304. Pending 23 before the Court is the petition, which was filed on October 24, 24 2011. 25 I. Screening the Petition 26 Rule 4 of the Rules Governing § 2254 Cases in the United 27 States District Courts (Habeas Rules) requires the Court to make 28 1 Dockets.Justia.com 1 a preliminary review of each petition for writ of habeas corpus. 2 The Court must summarily dismiss a petition "[i]f it plainly 3 appears from the petition and any attached exhibits that the 4 petitioner is not entitled to relief in the district court....” 5 Habeas Rule 4; O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 6 1990); see also Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 7 1990). 8 grounds of relief available to the Petitioner; 2) state the facts 9 supporting each ground; and 3) state the relief requested. Habeas Rule 2(c) requires that a petition 1) specify all 10 Notice pleading is not sufficient; the petition must state facts 11 that point to a real possibility of constitutional error. 12 4, Advisory Committee Notes, 1976 Adoption; O’Bremski v. Maass, 13 915 F.2d at 420 (quoting Blackledge v. Allison, 431 U.S. 63, 75 14 n.7 (1977)). 15 conclusory, or palpably incredible are subject to summary 16 dismissal. 17 1990). 18 Rule Allegations in a petition that are vague, Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. Further, the Court may dismiss a petition for writ of habeas 19 corpus either on its own motion under Habeas Rule 4, pursuant to 20 the respondent's motion to dismiss, or after an answer to the 21 petition has been filed. 22 8, 1976 Adoption; see, Herbst v. Cook, 260 F.3d 1039, 1042-43 23 (9th Cir. 2001). Advisory Committee Notes to Habeas Rule 24 A petition for habeas corpus should not be dismissed without 25 leave to amend unless it appears that no tenable claim for relief 26 can be pleaded were such leave granted. 27 F.2d 13, 14 (9th Cir. 1971). 28 /// 2 Jarvis v. Nelson, 440 1 Here, Petitioner alleges that he is an inmate of the Kern 2 Valley State Prison (KVSP) located in Delano, California, serving 3 a sentence imposed in the Superior Court of the State of 4 California for the County of Stanislaus pursuant to Petitioner’s 5 conviction on March 11, 2009, of murder and assault by means of 6 force likely to produce great bodily injury with gang 7 enhancements. 8 4.) 9 Petitioner challenges his convictions. (Pet. 1- Petitioner raises the following claims as to which he 10 alleges that state court remedies have been exhausted: 1) denial 11 of Petitioner’s right to a fair trial in violation of the due 12 process protections of the Fifth and Fourteenth Amendments by 13 admission of the testimony of four witnesses who testified 14 pursuant to a plea agreement that coerced them to testify for the 15 prosecution; 2) denial of Petitioner’s Sixth and Fourteenth 16 Amendment right to a fair trial resulting from prejudicial error 17 in the giving of an incorrect instruction concerning 18 corroboration of accomplice testimony, and denial of Petitioner’s 19 Sixth and Fourteenth Amendment right to the effective assistance 20 of counsel if counsel failed to preserve the issue for appeal; 3) 21 violation of Petitioner’s Sixth and Fourteenth Amendment right to 22 confrontation by admission of an autopsy report; 4) denial of 23 Petitioner’s Fourteenth Amendment right to due process resulting 24 from the trial court’s compound errors of giving an incomplete 25 instruction concerning flight after being accused of a crime in 26 the absence of evidence to support providing the instruction in 27 the first instance; and 5) violation of Petitioner’s Eighth 28 Amendment protection against the imposition of cruel and unusual 3 1 punishment under the Constitution and the constitution of the 2 State of California by imposing a sentence of fifty years to 3 life. (Pet. 4-6, 21-22, 24, 53-55, 63.) 4 Petitioner raises the following additional claims which 5 Petitioner describes as newly discovered, unexhausted grounds: 6) 6 denial of Petitioner’s rights to the effective assistance of 7 counsel guaranteed both by the Sixth Amendment and by state law 8 resulting from trial counsel’s failure to request that a 9 detective and a prosecutorial investigator who were also 10 principal witnesses against Petitioner be excluded from sitting 11 at the counsel table throughout the trial; 7) denial of 12 Petitioner’s rights to the effective assistance of counsel 13 guaranteed by both state law and the Sixth Amendment by trial 14 counsel’s failure to object to and to exclude photographs of the 15 deceased; 8) denial of Petitioner’s rights under the Sixth 16 Amendment and state law to the effective assistance of counsel by 17 trial counsel’s failure to object to the prosecutor’s a) vouching 18 for the credibility of witnesses and b) improper remarks 19 concerning Petitioner’s guilt before and during argument; and 9) 20 denial of Petitioner’s rights under the Fourteenth Amendment and 21 state law resulting from the insufficiency of the evidence to 22 support convictions for enhancements of discharging a firearm and 23 being armed with a firearm. (Pet. 6-7.) 24 II. 25 Because the petition was filed after April 24, 1996, the Dismissal of State Law Claims without Leave to Amend 26 effective date of the Antiterrorism and Effective Death Penalty 27 Act of 1996 (AEDPA), the AEDPA applies in this proceeding. 28 v. Murphy, 521 U.S. 320, 327 (1997), cert. denied, 522 U.S. 1008 4 Lindh 1 (1997); Furman v. Wood, 190 F.3d 1002, 1004 (9th Cir. 1999). 2 A district court may entertain a petition for a writ of 3 habeas corpus by a person in custody pursuant to the judgment of 4 a state court only on the ground that the custody is in violation 5 of the Constitution, laws, or treaties of the United States. 6 U.S.C. §§ 2254(a), 2241(c)(3); Williams v. Taylor, 529 U.S. 362, 7 375 n.7 (2000); Wilson v. Corcoran, 562 U.S. –, -, 131 S.Ct. 13, 8 16 (2010) (per curiam). 9 28 In his fifth claim concerning cruel and unusual punishment, 10 his sixth, seventh, and eighth claims concerning the alleged 11 ineffective assistance of counsel, and in his ninth claim 12 concerning the alleged insufficiency of the evidence to support 13 two enhancements, Petitioner relies on both federal and state 14 law. 15 they are not cognizable on federal habeas corpus. 16 relief is not available to retry a state issue that does not rise 17 to the level of a federal constitutional violation. 18 Corcoran, 562 U.S. — , 131 S.Ct. 13, 16 (2010); Estelle v. 19 McGuire, 502 U.S. 62, 67-68 (1991). 20 application of state law are not cognizable in federal habeas 21 corpus. To the extent that Petitioner’s claims rest on state law, Federal habeas Wilson v. Alleged errors in the Souch v. Schiavo, 289 F.3d 616, 623 (9th Cir. 2002). 22 Because the defects in the state claims are due to the 23 nature of the claims and not due to the absence of specific 24 factual allegations, the Court concludes that granting leave to 25 amend the state claims would be futile. 26 recommended that Petitioner’s state claims be dismissed without 27 leave to amend. 28 /// 5 Accordingly, it will be 1 Pending further order of the Court, Petitioner’s motion for 2 stay and abeyance of unexhausted claims will be addressed by the 3 Magistrate Judge after the District Judge’s consideration of 4 these findings and recommendations. 5 III. 6 Accordingly, it is RECOMMENDED that: 7 1) Recommendations Petitioner’s state law claims, including his fifth claim 8 concerning cruel and unusual punishment, his sixth, seventh, and 9 eighth claims concerning the alleged ineffective assistance of 10 counsel, and his ninth claim concerning the alleged insufficiency 11 of the evidence to support two enhancements, be DISMISSED without 12 leave to amend to the extent that such claims rest on state law; 13 and 14 2) The matter be referred back to the Magistrate Judge for 15 further screening, including consideration of Petitioner’s motion 16 for a stay of the proceedings to permit exhaustion of state court 17 remedies with respect to some claims. 18 These findings and recommendations are submitted to the 19 United States District Court Judge assigned to the case, pursuant 20 to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of 21 the Local Rules of Practice for the United States District Court, 22 Eastern District of California. 23 being served with a copy, any party may file written objections 24 with the Court and serve a copy on all parties. 25 should be captioned “Objections to Magistrate Judge’s Findings 26 and Recommendations.” 27 and filed within fourteen (14) days (plus three (3) days if 28 served by mail) after service of the objections. Within thirty (30) days after Such a document Replies to the objections shall be served 6 The Court will 1 then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 2 § 636 (b)(1)(C). 3 objections within the specified time may waive the right to 4 appeal the District Court’s order. 5 1153 (9th Cir. 1991). The parties are advised that failure to file Martinez v. Ylst, 951 F.2d 6 7 IT IS SO ORDERED. 8 Dated: ie14hj November 14, 2011 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7